The Legal Protection of New Varieties of Plants

in the post-TRIPS Environment

Laurent ManderieuxL. Bocconi University

Innovating food and new varieties of plants:

different concepts

but many key connections

Laurent Manderieux

Why creating IPRs in new plant varieties?

- to encourage business plant breeders to invest the resources, labor and time needed to improve existing plant varieties

- to benefit the collectivity granting the rights

Laurent Manderieux

Points of tension in using IPRs

- Are IPRs preserving well genetic diversity?- Are IPRs preserving well Farmers’ rights?- Are IPRs preserving well traditional knowledge?- Are IPRs well regulating access to plant genetic resources?- Attempts to claim IPRs in unimproved plant genetic resources may support bio-piracy

Laurent Manderieux

The Legal framework

3 international IPR agreements protect plant varieties and plant breeders’ rights.

- Two major treaty systems are under the auspices of the Union internationale pour la protection des obtentions végétales ("UPOV")

- The TRIPs Agreement, forming part of the World Trade Organization ("WTO")

Laurent Manderieux

UPOV Acts adopt sui generis systems of protection (tailored to the needs of plant breeders), with two modalities (1978 vs. 1991)

The TRIPs Agreement requires WTO Members to protect new plant varieties using patent rights, a sui generis system or some combination thereof >>> TRIPs leaves states with flexibility>>>National governments have options in choosing the intellectual property regime applicable to plant varieties

Laurent Manderieux

The 3 existing texts =

3 main approaches for protecting new varieties of plants

Cf. Handout n°1

Laurent Manderieux

Laurent Manderieux

Country backgrounds: 4 current categories

- In UPOV 1978- In UPOV 1991- In TRIPS- Outside the WTO System

Country reactions ( as per the UPOV Secretariat)

- In Europe

- In the Americas (USA vs. Latin America)

- In Africa

Laurent Manderieux

Laurent Manderieux

Future options in using IPRs for new plant varieties

(cf. Handout 2)

- Options preserving well genetic diversity

- Options preserving well Farmers’ rights

- Options preserving well traditional knowledge

- Options regulating better access to plant genetic resources

- Anti-biopiracy clauses

Laurent Manderieux

The effectiveness of flexibilities in using IPRs for new plant varieties

- IPRs in bilateral and other FTAs: towards TRIPS + standards

- CBD FAO Treaties and the bargaining power in the Development Agenda

laurent.manderieux@unibocconi.it